Part time exposure and the Longshore Act
Jul 19, 2011
- Jack Martone, The American Equity Underwriters, Inc.
It’s a common situation. Mixed duty workers spend part of their time doing maritime work, and they spend the rest of their time, maybe even the majority of their time, doing non-maritime work. The employer wants to know why he is paying Longshore Act rates (which we all agree are usually higher than state act rates) for non-maritime work. It’s a fair question, and there is an answer. Part time maritime work equals full time Longshore Act exposure.
But sometimes I say to myself, “Maybe I overdo it when I say that, in my opinion, there is no such thing as part time exposure under the Longshore Act”.
But there is clear support for this position. It has long been the opinion of the U.S. Department of Labor, which administers the Longshore Act, and there is support at all levels of the case law for the principle that regular, part time maritime duties equal full time Longshore Act exposure with regard to the “status” of the employee. Note: This is a “status” issue. We are assuming that these workers are on a covered “situs”.
Let me put it this way. The principle is that an employee who performs maritime duties as any part of his regularly assigned duties is a maritime employee covered by the Longshore Act. And it doesn’t matter how small a part; there is no minimum portion required. Even if only two percent of regular duties are maritime related, you’ve got a one hundred per cent maritime employee covered by the Longshore Act. And, there is no moment of injury test. It doesn’t matter that at the moment of injury the employee was performing non-maritime duties. He’s a maritime employee covered by the Longshore Act.
The principle goes back to before the 1972 amendments, when the only test for coverage was situs; you had to be injured over the navigable waters of theUnited Statesor on a dry dock. Waterfront workers walking in and out of coverage presented employers with a problem. You can see why. This was before containerization and fabrication processes moved much of the stevedoring and shipbuilding work on to land. Most of the work was still being done over the water, and workers’ compensation insurance coverage changed from state to federal each time the worker passed back and forth across the Jensen Line at the water’s edge.
This concern was one of the reasons for the 1972 amendments’ shift in coverage landward to certain enumerated sites and to “other adjoining (maritime) areas”. The concept of “status” was created. A series of Supreme Court decisions based on the Constitutional principle of maritime uniformity and the Congressional concern with the walking in and out of coverage problem made clear that in order to meet “status” for Longshore coverage the worker did not have to be engaged exclusively in maritime work and did not have to be engaged in maritime work at the moment of injury.
The Supreme Court in Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977) described covered employees as “persons whose employment is such that they spend at least some of their time in indisputably longshoring operations.” The “status” analysis for Longshore Act coverage must consider all of the worker’s regularly assigned duties. If any portion of these regularly assigned duties is maritime in nature, then that worker is covered by the Longshore Act. When you consider this along with the principle that there is no “moment of injury” test for coverage, then the conclusion is that there is no part time Longshore worker.
This proposition has been tested repeatedly and confirmed. In the process, it has been established that there is no minimum maritime component of regular duties required. As little as 1 or 2 percent of regular maritime duties can yield a full time Longshore Act worker.
To some employers, and their brokers, this is not a logical concept. To some, it is not a rational concept. To most, it is unpopular. But the development of the case law is clear. And remember the concerns that are being addressed. The U.S. Constitution requires national uniformity in maritime matters. The federal Longshore and Harbor Workers’ Compensation Act covers maritime workers. It would be inconsistent with the purpose of the Act if some indisputably maritime workers were excluded. Workers walking in and out of coverage during the workday present a problem for employers and their insurance carriers, and the Act should be interpreted to avoid this whenever possible. So, all workers with maritime duties should be covered, and for their full employment.
Note: This discussion concerns the “status” of the worker. The issue of “situs” can also have a part time component since the site of the injury does not have to be used exclusively for maritime purposes. That discussion is for another day. Until then, both “status” and “situs” have to be separately satisfied for coverage under the Longshore Act.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.